INTRODUCTORY REPORT

TO

THE CODE OF PROCEDURE.

I HAVE now the honour to present the second of those codes which your law has directed me to prepare. The legislature, which passed that law, were aware that no system would be complete without a Code of Procedure. Expense, delay or uncertainty, in applying the best laws for the prohibition of offences, would render those laws useless or oppressive. Therefore, this division has been considered of equal importance with any of the others, but more extensive in its operation than either of them. The party committing the offence and the individual injured, rarely the whole community, are the only persons immediately affected by the commission and punishment of a crime. But in the measures prescribed for preventing or prosecuting them, every citizen, however unconnected with the offence, may find himself involved. As a judge, a magistrate, a civil or military officer, or even a private citizen, every one is liable to become an active party in the task of applying the law, after a breach of its provisions has taken place, in preventing the commission of a crime, or in arresting the progress of such as are continuous in their nature. The rules which direct us in what manner, under what circumstances, and to what extent we may use force to protect our own persons and property, or those of another, against unlawful violence, also belong to this division of the law; so that its provisions are more required for daily use than those of any other part of the system; and it may, therefore, without impropriety, be said, that a society, however excellent may be its laws for defining crimes and affixing to them proper punishments, will, if the means of carrying them into effect are expensive, dilatory and uncertain, be worse governed than the community in which the Code of Crimes and Punishments is faulty, but where the rules for executing it, and for preventing and arresting the progress of offences, are easy, cheap, expeditious and just. More attention, therefore, has been paid to this branch of the subject than the little importance, commonly attached. to it, would seem to warrant. None of the codes which have come within my knowledge, either ancient or modern, except the French, contain any separate body of laws directing the mode of procedure, either for arrest, trial, punishment or prevention. Our laws, as we have seen, are wofully defective in this particular; giving for acts, which, by some laws, are declared to be offences, no rule whatever; and for the others,

referring us to the English common law, unmodified by statute. The necessity, therefore, of a Code of Procedure was much more urgent than that which existed for a Code of Crimes and Punishments. The system adopted in the prosecution of certain offences, by the legislature, and in that of others by the courts, with the modifications introduced by our statutes, is freed from many of the abuses and oppressions to which criminal prosecutions in England are liable: a public officer being appointed to prosecute, the individual who has suffered by the crime, is not, in addition to his loss, put to the expense of bringing the offender to justice: jurors being taken by lot, no improper influence can be exerted in the arrangement of the panel: the assistance of counsel being secured in all cases, the defendant, no matter of what he is accused, is enabled to make his full defence: and the intervention of a grand jury being rendered necessary in every case of a grave accusation, the individual is not exposed to vexatious prosecutions that can materially affect him. Standing mute is considered as a denial, not a confession. Appeals of murder, trials by battle, and many other oppressive and absurd parts of the ancient common law, have never been used in our state. Yet, with all these comparative advantages, our practice requires reform.

First, because the exemption from several of these and other inconveniences is, in many instances, not secured by law; and, in others, is given to us by the construction of the court, contrary to law. In the Introductory Report to the System of Penal Law, it has been shown, that where the common law of England is prescribed as the law of our procedure, it is spoken of without any of the amendments introduced by the English statutes; and that in all acts, which are created offences since 1805, no mode of procedure whatever has been provided.

Secondly, because, if the present mode of procedure were sanctioned by law, it would require alterations and additions in the several particulars in which they have been introduced in the code, some of which will be hereinafter pointed out, with the reasons for introducing them.

Thirdly, because of the difficulty, expense and inconvenience, before enlarged upon, of referring to foreign laws, written in a language which a majority of our citizens do not understand.

Fourthly, because of the uncertainty inseparable from laws depending for their authority upon judicial decisions.

Fifthly, as incident to the two last, because of the ease, convenience, and indeed necessity, for all those who wish to perform their duty as good citizens, of finding in one book, couched in language easily understood, and arranged in a method making them easily accessible to all; the rules necessary to direct them in all the cases in which self-defence, the prevention of crime, the arrest of offenders, and their high duties as magistrates or jurors.

The Code of Procedure now offered, sets out, as that of Crimes and Punishments does, with an introductory chapter, containing a brief exposition of the objects which it is intended to effect. To this enunciation I have heard no objection stated, and its utility has been acknowledged by many of those statesmen and jurists to whom the plan has been submitted; it has, therefore, been retained.

The first of these objects, in order, as well as in importance, is the

prevention of intended offences. This may be effected by personal resistance. The cases in which resistance is lawful, the degree to which it may be carried, under what circumstances the interference of private individuals is permitted, when the sanction of a magistrate is required, his right to command the assistance of others, and when he may require the aid of military force, together with the formalities required for effecting these objects, are set forth in the first book.

According to our present jurisprudence, there is either no written law for our direction on these points, which it is so much our interest, as parties, magistrates or citizens, to know, or it is so dispersed in different books, so uncertain when it is found, and of such doubtful authority, as to render it unsafe for any one to trust to his own opinion, or in truth, in many cases, to that of others. Yet the occasions which call for the exercise of these rights and duties, are those of all others in which there is least time to reflect, or opportunity to consult. For this reason, every man ought to be provided with the means of acquiring so much knowledge on these points as is necessary for daily use. Without it, he will neither know how to protect himself, or pay these duties, which he may be urgently called on to perform in the protection of others. He must either act at his peril, submit to injuries which he has a right to repel, or depend on the purchased opinions, and sometimes the forked counsel,' of men who disgrace an honourable pro

fession.

All

The first dictates of common sense inform an individual that he has, a right to defend himself. The laws of society impose the obligation upon him of defending others, and of enforcing the execution of the laws. Magistrates and executive officers are required by official duty to prevent or arrest violence and depredation; and the military force is told, that it must assist the civil power when legally called on. this the general language of the law gives the citizen to understand. But in our state it has never deigned to make such a record of its will as may enable any one, desirous of obeying, to discover boundaries between legal acts and transgression in the performance of this duty. A correct moral sense, a determination to injure no one may, with respect to a man's own actions, render a knowledge of positive law less necessary; but no prudence can foresee or prevent the necessity of self. defence, and every man may be called on in some capacity to protect others or to defend the peace of the state; and yet with every inclination to perform the duties of a good citizen on these occasions, he is continually arrested by the unavoidable doubts which must arise as to the propriety of personal exertion in the particular case, or the extent to which he may carry it. On the vital subject of calling in the military to the aid of the civil powers, there is absolutely no provision; and there is no power liable to a more dangerous abuse. Sometimes necessary for the defence of the constitution and the enforcement of the laws, it is, at the same time, the weapon best adapted for their subversion. The circumstances, therefore, in which its use is permitted, and the mode of its exercise, ought to be impressed on the mind of every citizen to prevent his refusing his aid when it is legally required on the one hand, and of his being made the instrument of his own oppression on the other. It is attempted, in the first book of the code now presented, to provide a remedy for these evils.

The first title treats of the modes of preventing apprehended offences,

which it is declared may be either by resistance or by the intervention of the officers of justice.

The first chapter, by reference to the corresponding parts of the Penal Code, lays down the rules by which the resistance of the party injured, to offences affecting his person or property, is regulated. The second chapter details the cases in which third persons may interfere, without the sanction of the magistrate, and those in which such interference is not only a right, but a legal as well as a moral duty. In this chapter are contained two provisions which require particular notice. By the first an honorary reward is held out as an inducement for extraordinary exertion in the prevention of crime, or in bringing an offender to justice. This consists in a certificate of the act, recorded on the minutes of the court, and transmitted to the appointing power to serve as a recommendation for any office in which the qualities manifested by it are required; to this, in such cases as the governor and judges think worthy of the distinction, a piece of plate, of limited value, may be added. A very high authority (a) tells us, that recompense, in a despotism, must, to accord with what he terms the principle of the government, be of a pecuniary nature, and honorary in a monarchy; but that in a republic, founded on virtue, and which he seems to think ought to be its own reward, it ought not to be allowed at all. He admits, that in a monarchy the honour is and ought to be accompanied by fortune; but why his doctrine should interdict to republics the agency of both honour and profit, upon the human mind for the public good, it is not easy to imagine. If a republic could be composed of men willing to devote their services to their country from a patriotic desire to see it prosper, without the admixture of any other motive, rewards and distinction would be unnecessary; but such pure attachment to the public good has never been known to pervade any community; and the reward of public esteem, and the distinction to which it leads, must ever be so closely connected in the mind with the most elevated and disinterested patriotism, as to make it extremely difficult to pronounce the latter motive to have been that which predominated in any given exertion for the public service. All that a wise legislator can be expected to do, is to present such motives as will most effectually attain the end, which, in the case under consideration, is extraordinary exertion for the due execution of the laws. But we must take care that these means are not such as will produce a greater evil than the breach of the laws which they are employed to enforce. Such I confess would be a corruption of the morals of the people, or the introduction of any motive that would destroy the fundamental principles of their government.

Let us test the system of rewards for extraordinary services by this rule. There can be no greater incentive to voluntary action than the hope of public applause, and when joined to pecuniary recompense and undiminished by any consciousness of wrong, it comprises all, perhaps, that, independent of religious motives, can most forcibly act on the human mind; it is, therefore, well calculated to produce the effect. For let it be remarked, that it is proposed solely to operate in cases where the fears of punishment cannot be employed; no man can justly incur a penalty for not doing more than the law requires; but the public good may, at times, be essentially promoted by such acts.

(a) Montesquieu, Espris des Lois, 1. 5, c. 18.